



18 77. 



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Book ^ r S 5 



COUNTING THE ELECTORAL VOTES. 



SPEECH 



OF 



HON. CHAPMAN pEEMAN, 



OF PENNSYLVANIA, 



IN TUB 



HOUSE OF REPRESENTATIVES, 



January 25, 1877 



/^ 



1877. ^^ 

\ 



SPEECH 



^ 



OF 



HON. CHAPMAN FllEEMAN 



On the Till (S. Xo. 1153) to provide for anil reKxilato the coiintins; of votes for Presi 
dent anil Vice-Pie.siilent, and tlie decision of questions arising thereon, for the 
term commencing March 4, A. D. 1877. 

Mr. FREEMAN. Mr. Speaker, in the settlement of all questions of 
constitutional law the primary and fundamental source of informa- 
tion, in a Government such as this, must lie in the examination and 
correct interpretation of that basis of all law, the Constitution itself. 
This is the root whence springs the life of all national law, and it is 
a strange matter indeed if, after nearly one hundred years of its study 
by the minds of some of the noblest specimens of intellect the world 
has ever produced, we are left now stranded, inthe face of insurmount- 
able danger, whicli all that time washable, during any four years, to 
arise. Now, sir, what are the mandates of the Constitution in this 
behalf ? They are, as regards the election of a President, first — 

Each State shall appoint, in such manner as the Legislature thereof may direct, 
a number of electors, equal to the whole number of Senators and Representatives 
to which the State may be entitled iu the Congress; but no Senator or Representa- 
tive, or person holding an office of trust or profit under the United States, shall be 
appointed au elector. — Article 2, section 1, clause 2. 

The Congress may determine the time of choosing the electors, and the day on 
which they shall give their votes ; which day shall be the same throughout the 
United States." — Article 2, section 1, clause 4. 

In these provisions of the Constitution, together with the twelfth 
amendment hereafter referred to, we must search for a clear and 
proper understanding of the whole question of the counting of the elect- 
oral vote. Under the reading of clause 2, section 1, article2, the entire 
question of the manner of appointmentof electors is placed within the 
control of the State Legishitures. No other power is found anywhere 
to infringe a liair's-brcadth on this exclusive right. It is above and 
beyond Congress, and draws vitality from the very source of life to 
Congress itself. As well might the State Legislatures undertake to 
interfere with the constitutional rights and powers of Congress, as 
the latter assume to interfere, in whatever manner, under whatever 
claim, in whatever shape, or under color of whatever riglit, with the 
sole, su])rcme, unimpeachable power of the State Legishitures. The 
people of the States tliemselves, save in so far as they can elect from 
time to time their legislators, cannot interfere, and no other branch 
of the State governments have aught to say. 

THU LEGISLATUUES OF THE STATES AUE SUPREME 

in this matter and they can provide any manner of appointment they 
deem best. This constitutional power being supreme, it follows that 
its exercise cannot be disputed or reviewed, for to give to Congress a 
right to review the action of the Legislature is to deprive it at once 



of its supreme authority and to nullify the mandate of the Constitu- 
tion. But " tho Coiij^ress may <letcrniiue the time of choosing the 
electors and the day on which they shall give their vote, which day 
shall be the same throughout the United 8tates." As this power is 
not in dispute and docs not touch the merits of the question as at 
present presented, it is hardly necessary to dwell upon it. Any right 
Congi-ess would have upon the subject is to be looked for, if any- 
where, in the constitutional power given. But it would but go to the 
formality of the vote and not to its substance ; and in the only case, 
that of Wisconsin in l";')?, in which the question arose of the power 
of Congress to control the count, when it appeared on the face of the 
certificate that the electoral vote had been cast on the day succeed- 
ing the one prescribed by law, the vote was recorded and so stands 
to-day. It was a case much argued by some of the ablest men of that 
day ; but the action then taken remains a record to this hour. *The 
only argument adverse to the claim of counting the vote of that 
State was ]ira(tically founded upon the express constitutional pro- 
vision followed by the act of Congress itself. 

Having thus seen that the manner of appointment is entirely and 
absolutely vested in the State Legislatures, we come to Article 1-2 of 
the Constitution, before referred to, which expressly directs — who ? 
Not Congress, or either House thereof, but the electors themselves 
how they shall proceed until they are finally directed to ccrti/j/ ami 
transmit sealed, not to Congress, or the ^Senate, or House separately, 
or to the President of the Senate, but to the seat of Government of the 
United States, directed to 

THE PKESIDENT OF THE SENATE. 

Now, Just here let me ask who is the President of the Senate ? For 
an answer we turn to clause 4, section 3 of article 1 of the Constitu- 
tion, and we find that — 

The Yice-PresiiliMit of the United States sliall bo Presitlent of the Senate, but 
shall have no vote nuless they be equally divided. 

It is therefore in his capacity as Vice-President, or, in the case of 
a Presidency 2)ro tempore, by his relation to that high otlice, that 
the electors are directed to act. As President pro temj)ore alone ho 
could not act. There is no authority for it in the Constitution. But 
as I'resident pro tempore, acting Vice-President, he can, for as acting 
Vice-President he becomes teelinically President of the Senate under 
the Constitution. And this marks the constitutional distinction be- 
tween the President (d" the Senate as such under the Constitution, 
and as the mere jiresiding ollicer or organ of that body. 

Tlie President of tho Senate shall, in the iiresenco of the Senate and House of 
BepresentativL's, open all the certijicates aud tlie votes shall then be counted. 

And this raises the question with regard to which hasty partisan^ 
ship has tilled tlie air with its thousand evil tongues, and sought, by 
devices well learned through long years of assuming power, to breathe 
into loyal liearts the thoughts of another scene of blood and ruin 
such as the.so same imbittered spirits conjured up into all the horrors 
of reality scarcely sixteen years ago. Why, sir, one is led to think 
■wo have already entered unconsciously into the firet dread step of 
■war. We pau.se to seek for the existence of a suprenu' court to ex- 
])Ound tlit> suprenu' law of the land and lor an executive whose duty 
it is to ent'oi'ee it. Have they pa.ssed out of existence or have we 
already reat lied that stage of indepcutlent gf)vernment when, like 
unhapiiy .Mexieo and the unstable re))ubHcs of South America, the 
solution of party questions is to be found only in individual suiremaoy 



5 

and open revoliitioii ? Why is it, sir, that the law of the land is not 
permitted to talve its natural course ' What 1iird of evil omen has 
cast its shadow over this laud of free people and awakened fears of 
the impeudiuLj dowufallof free jrovc^i'nuient ? It isthesi)iritof treason 
and rebellicui already sending grumbling and mutterin;j; threats abroad, 
as sixteen years ago, of what is to be the result if such constructions 
of law and principles of action are not adopted in the present con- 
dition of the presidential election as shall suit the views of the de- 
feated party. Sir, before looking into the legal merits of the ques- 
tion I. desire, as solemnly as \\ords can enable me, to enter 

A WAUNIXG PROTEST AGAINST ASY COMPROMISE 

with such a condition of atfairs. If to-day, when the peoi)le of the 
whole world are singing hosanuas to the glory and happiness of free 
government as carried to the remotest corners of the earth by the 
national gatherings here of the past year — if, I say, to-day and at 
this hour, with each day bringing to us the echoes of their greetings, 
vre are forced to admit that we are living under law so shadowy and 
unreal as to be without the power of enforcement, then God take 
into his keeping the hope of the oppressed, for the future of free gov- 
ernment is enshrouded in darkness. Sir, I believe in the law, and 
the life of the law is the execution of the law. When a citizen, or a 
body of men, or a great party cry out for the execution of the law 
in a certain form and threaten resistance if not heeded, their hearts 
are filled with treason, I care not who they are. No party can or 
will endure, in a government republican in form, which does not live 
iiY> practically and earnestly to the forms of law ; and no government 
republican in form can endure which does not live up to and enforce, 
in the hour of threat and danger, the law which is the foundation of 
its existence. Now, sir, let us turn to the question of 

THE COU^rnXG OF THE ELECTORAL VOTE, 

the law for which, if any, is found in the twelfth amendment to the 
Constitution already referred to. Its words are : 

The President of the Senate shall, in the presence of the Senate and House of 
Kepresentatives, open all the certificates and the votes shall then be counted. 

Now, sir, what is the true intent and meaning of the words " cer- 
tificates" and "counted?" The word certificate means here "a 
written declaration legally authenticated," or " a written testimony to 
the truth of any fact." The word to count means "to tell or name, 
one by one, or by groups, for the purpose of ascertaining the whole 
number of units in a collection ; to number, to enumerate, to compute, 
to reckon ;" and to compute is to determine by calculation, to ascer- 
tain by mathematical process ; and the count is the amount ascer- 
tained by numbering. 

The language of the Constitution is not that the votes shall he 
counted hy the Senate and House of Representatives, but " in the 
presence of the two Houses." They are entirely passive and clearly 
not active in the matter. On page 334 of the journal of the Federal 
convention the words "in presence of the Senate and House of Repre- 
sentatives " were moved to be inserted after the word counted, and 
this motion was carried. The journal of the convention does not show 
that any motion was made to strike out the words " in that House," 
which occur in the original draught, nor does it show why the words 
"in the presence of the Senate and House of Representatives" were 
inserted in the place of the words " in that House," instead of after 
the word "counted," as was voted hy the convention. 



This was iu place of the wonls "shall i« that House'' open all the 
certitieates, and the votes shall then be connted, which shows that 
the orii/inal idea was not eren to hare the loner House preient at the eouut- 
ing. The electors were not intended to meet at the seat of the Gen 
eral Government, for a motion to that etiect was negatived. Congress 
may determine the time of choosing the electoi-s and of their giving 
their votes, bnt the mnuneroi appointment of the electors remains in 
the local or State Legislatures, and only the manner of eertifij'nuj and 
tranmnitthii/ their votes is given to Congress. By what authority can 
Congress question the appointment f It has only to see as to the 
proper exercise of the powers granteil, viz : Tlie time of choosing the 
electors and of their giving their votes and of the proper certification 
and transmission. If their custody and opening are in the power of 
the President of the Senate and he is directed, '"in the]iresenceof the 
Senate and House of Kepreseutatives," he shall open all the certili- 
cates, and " the votes shall then be counted,'" and no reference is made 
to any other construction of tiie sentence, the common sense of the 
language, the implication of law, all show that the counting is to be 
by the custodian of the trust. It cannot be doubtful, tu- it would have 
read" shall open all certificates in the presence of the Senate and House 
of Representatives, by uhom the votes shall then be counted." The 
new-bom horror with which the idea of 

THE rOWF.U OF THE IT.E.sniEXT OF THE SENATE 

to count the votes is all at once investsd, seems to have no existence as 
to the faithful trust of their unlimited custody for months. If he 
could count them against the judicial dictates of his conscience, how 
much more readily could he alter them or destroy them altogether. 
A thousand excuses could be made for the .secret act, while the other 
is to be executed with both Houses as witnesses of the wrong, if any 
be attempted, and w ith the punishment of impeachment before the 
wrong-doer. 

By the Federal Constitution, as I before remarked, the manner of 
the appointment of presidential electors is in the State Legislatures. 
The question of how that right has been exercised is one for the State 
to decide. But the electors once appointed, the manner of the cer- 
tification anil traTismission of their votes can alone be directed by 
Congress, and if jtrojjerly done they are bound to be counted. The 
President of the Senate is directed to ojjcn the votes. There can be 
but one valid and correctly certified and transmitted certificate from 
each State. There may be many false and fraudulent ones. He is 
to open all the certificates. A false paper is not a certificate, and he 
is not directed to open anything but the certifuaieii. I would like to 
be ])ointed to the line iu the Constitution saying this <iuestion must 
be submitted to Congress, and I would like to be pointed to the princi- 
I)le of interpretation by wliicli when the Constitution delegates a j)ower 
which rccjuires the exercise of conscientious individual action, that is 
not the delegation of judicial power. If the certification is correct it 
proves itself; if it is not correct it is no certification. How in cases 
of di.spute is the President of the Senate to determine whether lie has 
opened the vote until he examines the certificates, and this again is 
the exercise of a judicial power co-extensive with and necessary to the 
execution of the power to open the votes. But the tru(> intent and 
meaning of the Constitution ni>on this jxtint is unanswerably sho\fn 
by the interpretation jint upon it by the actual framers of the docu- 
ment in the resolution in tlie nature of instructions of September 17, 
ITrT, by which the Senate was advised how action should bo taken 
on the fii-st vote. 



COUNTING THE FIUST VOTE FOR PRESIDENT. 

The instrtictinns were that the Senators .shonhlai)point a Prcsulcnt 
of the Senate for the sole purpose of receivin.i^, opening, and count- 
ing the votes for Presitleut. In accordance with this interpretation of 
the Constitution by those who framed it and on undeniable evidence 
of the acceptance of the Constitution by Congress, at the election for 
the first presidential term, April 6, 1769, wo find it was ordered in the 
Senate " that Mr. Ellsworth inform the House of Kepresentatives that 
a quorum of the Senate is formed ; that a President is elected for the 
sole purpose of opening the certificates and counting the votes of the 
electors of the several States in the choice of a President and Vice- 
President of the United States ; and that the Senate is now ready, in 
the Senate Chamber, to proceed in the presence of the House to dis- 
charge that dutv ; and that the Senate have appointed one of their 
members to sit at the Clerk's table to make a list of the votes as they 
shall be declared ; submitting it to the wisdom of the House to appoint 
one or more of their members for the like purpose." Then again in the 
form of the Journal of the Senate of the same date it is broadly stated 
that "the President elected for the purpose of counting"— here the 
word "opening" is omitted — "the votes declared the Senate and 
House of Kepresentatives had met, and that he, in their presence, had 
opened and counted the votes," »fcc. 

THE FIRST CERTIFICATE OF ELECTION FOR PRESIDENT, 

the one given to General "Washington, contains these words: 

Be it known that, the Senate and House of Representatives of the United States 
of America being convened in the citv and State of Xew York the 6th day of April, 
A D. 1789, the underwritten, appointed President of the Senate for the sole purpose 
of receivin't' opening, and counting the votes of the electors, did, in the presence 
of the said^Senate and House of Representatives, open all the certificates and count 
all the votes of the electors for a President and for a Vice-President; by which it 
appears that George Washington, esq., was unanimously elected, agreeably to the 
Constitution, to the office of President of the United States of America. 
In testimony whereof I have hereunto set my hand and seal ^T/>T^«-^T 

JOHX LANGUOiN. 

And so, too, the certificate to Vice-President Adams contains the 
same words ; so that at that day, when the intention must have been 
clear and well understood, the'matter of the opening and counting 
and declaring the vote was indisputably in the President of the Sen- 
ate, for he exercised it without question or dispute. So, too, the 
Journal of the House is in strict conformity with that of the Senate. 
On the same day it appears therein recorded that Mr. Ellsworth, on 
behalf of the Senate, said : 

Mr Speaker, I am charged by the Senate to inform this House that a quorum of 
the Senate is now formed ; that a President is elected for the sole purpose of open- 
ing the certificates and counting the votes of the electors of the several States in 
the choice of a President and Vice-President of the United States, and that the Sen- 
ate is now readv in the Senate Chamber to i)roceed, in the presence of this House, 
to discharge this duty. I have it al.so in further charge to inform this House that 
the Senate has appointed one of its members to sit at the Clerks table to make 
a list of the votes as they shall be declared, submitting it to the wisdom of this- 
House to appoint one orm'ore of its members for the like purpose. 

And it will be noticed that each body elected parties "to make a list 
of the votes as the same shall be declared," showing that the act of declar- 
ation of the vote was to be recorded as the substance of the list. This 
seems to leave the question so utterly beyond argument at this period 
of time, that it would be a work of supererogation to say more in that 
connection. 



8 

HOW HAS THIS COXDITIOS CHAXOKI) ? 

To ascertain we must follow the Constitution and laws made in pur- 
suance thereof. Accordingly we next lind a law passed by Congress 
in 1792 under and by virtue of the Constitution which entirely harmo- 
nizes with all these forms and actions, and one that shows that there 
was no thought at that time of Congress, as such, having anything 
more to do with the electoral vote than as witnesses. It clearly in- 
tends to keep even the custody of the votes out of the hands of Con- 
gress in case of the absence of the President of the Senate. Surely, 
ijf Congress were to i)ass upon the substance and validity of the cer- 
tificates, their care and sole keeping would not have been deposited 
60 studiously in other quarters ; for, after in section 5 enacting (with- 
out referring to the Vice-President as if there was no thought of mis- 
understanding on this point) " that the said certificate," &c., agree- 
able to the Constitution, shonld issue to the President declared elected, 
secti(m C goes on to provide for the custody of the votes in case of the 
President of the Senate, who was the Vice-President, not being at the 
seat of Government on their arrival, &c., by directing that they be 
placed, not in charge of the Senate President j)?o tempore or House of 
Representatives, or both, or as they might direct, but in the office of 
the Secretary of State as a place of safe-keeping, and to be delivered 
over, &c., to the President of the Senate. I desire it to be observed 
that so far, that is the 

TEllMINATION OF THE COXGUESSIOXAL raOCEEDlXGS 

of the election for the (irst term, not an act committed or a word 
spoken in cither branch of Congress is at vaaiance with the plain 
language of the Constitution that the President of the Senate is to 
receive and open the certificates, which, ox necessitate rei, involves the 
determination of the fact as to what are the certificates, while every 
action unanswerably adopts the construction of the resolution of 
September 17, 17H7, "that the purpose of electing a President of the 
Senate is for the single ]>nriiose of receiving, ojiening. and counting 
the votes." It was intended that thisquasi-judicial power shonld be 
in the hands of the Vice-President, who by the Constitution is Presi- 
dent of the Senate, and as there was no Vice-President to thus act, it 
became necessary to ajipoint a President of the Senate, whose powers 
anil duties were strictly limited to the necessities of the occasion. 
This view is still further strengthened if we look to the language used 
in relation to 

THE ..VTPOINTMEXT OF TELLEHfi, 

whose duties were merely clerical and in no sense indicative of any 
assumption of power by either House, namely, " the Senate appointed 
one of its members to sit at the Clerk's table to make a list of the iot<s,'' 
not after they are opened, but " as tliey shall be declared." and by 
the House that two members "bea]iiiointed on the ])art of this House 
to sit at the Clerk's table with I he members of the .Senate and make 
a list of the votes as the same shall he dcvland." Is this not clear that 
the President of the Senate, as Vice-President or acting Vice-Presi- 
dent, is to open and declare or announce the vote before the list is 
made, and that the list must be made in conformity witli such declara- 
tion or announcement, and that sncli action, under the obligation of 
tlie Constitution, is of such a character as to be maiulatory and it 
cannot be .avoided by either Congress or the President of the Senate, 
and must from the very necessities of the condili»)n reciuire the us(> of 
the good conscience of the latter and to that extent be quasi-judicial ? 



THE SECOXU ELECTION OF PRESIDENT. 

At the electiou of 1793 the mode of procedure was identical, and I 
desire to call attention to the message from the House of Representa- 
tives of February 5, 17U3, with regard to the appointment of a com- 
mittee " to join," «S:c., * * * " of eo-a?)!!'))!'/!*? the votes," &c., for 
President and Vice-President. But after the two committees had as- 
certained the mode by examining the supposed law and the precedent, 
they reported "that one iierson," «S:c., * * * "make a list of the 
votes as they shall be declared," of course by the President of the Sen- 
ate acting as a constitutional officer. Here the language is sometimes 
loose, but there nowhere exists a thought of questioning the powers 
of the President of the Senate under the Constitution. So the Journal 
of the Senate of February 13, 1793, reads " the certificates of the elect- 
tors," &c., "were by the Vice-President," &c., (here the title Presi- 
dent of the Senate is not even used,) tending to show more forcibly 
that it was in this character in which the presiding officer of the Sen- 
ate derived 

HIS COXSTITUTIOXAL DUTY, 

and not simply as the officer elected by the Senate from its own body 
to preside. The Constitution makes the Vice-President the President 
of the Senate. At the first election there was no existing Vice-Presi- 
dent and the Senate could not elect one, for there was no vacancy. It 
became, therefore, necessary to elect a President of the Senate for 
the purpose of executing the functions and duties in connection with the 
counting of the vote, but he was created, and his duties confined to 
that particular thing. It is in no wise as President of the Senate, but as 
Vice or acting Vice-President that his duties and functions under the 
Constitution arise, and in no one portion of that instrument, as I hope to 
convince the House before I close, is a more profound sagacity shown 
than in that where this high and solemn duty is placed in the hands of 
that officer. That at that early day the relationship of the Vice-Presi- 
dent by relation of his office to the Presidency of the Senate was not in 
all minds is quaintly illustrated by the announcement of the Secretary 
of the Senate to the House of Representatives on the occasion of the 
second declaration of the electoral vote, that he was "directed to in- 
form the House that a President of the Senate is elected," & c, whereas 
Vice-President Adams i)resided, declared the vote, and announced the 
result. The only other 

ASSUIU'TIOX OF THE TWO HOUSES 

at this time was the proper and necessary one, they having been wit- 
nesses of the announcement of the result, of the notification to the 
parties elected. And here I desire to ask attention once more to the 
language of all these various resolutions. At the election for the 
third term a similar resolution " to ascertain and report a mode of 
examining the votes" was adopted, which resulted in the adoption in 
the same united resolve for the appointment of tellers " to make a 
list of the votes as they shall be declared." And this was the only 
examination carried out, Avas the only one lawful under the Consti- 
tution. And in the declaration of the second and third electoral votes 
the Vice-President had to declare his own election, in the one case 
the Vice-President and in the latter as President, and no one had the 
hardihood to suggest at that early day when the practical workings 
of that instrument were upon trial before watchful minds that such 
was not the law. The terms were doubtless well considered and by 
their selection speak with double force the true intent. To read the 
vote or to declare it in connection with the sole custody and power 
and duty to open it, is to be compelled to pass upon its validity and 
is essentially judicial. 



10 

TO COINT IT AlTF.It IT IS KECLAUED 

i8 to sum it lip, to obtain its result in nnuibers in accordance with the 
ileolaration, and is nothiii}; bnt clerical and ministerial. No sophistry 
of laii^uaj^f can make it otlierwise, as no condition of circumstances 
chanyts the ori;anir law. Tu view it otlierwise is to say that either 
House ha<l it in their power fioiu tlie commencement to defeat the 
will of the i)c(>ide from wlinm tiiey received tlieir own existence. The 
manner of the appuintnient for electors is in the Legislatures of the 
States. If this be so, and it is so by the express words of the Con- 
stitution, all the incidents of the election must lie in the same direc- 
tion and can by no distortion of power be assumed by Congress. It 
is essentially dilVerent from tlie election of its own members, for there 
the power is directly given to look into the qualiticatious, which in- 
clude tlieir due election. 

THE VlilAl MSACUEEMEN'T 

between the two Houses was shown J)y refusal to agree to the first bill, 
proposeil to provide a mode of deciding disputed elections of Presi- 
tlent and Vice-President of the United States. 

This disagreement was mainly on the point of whether the votes 
should be admittnl upon the concurrence of the two Houses or whether 
no votes should be rejected save by concurrence of both Houses, and, 
strange as it may ai)pcar to the present House, it was the House that 
lirmly adhered to the latter. 

THE THIRD ELECTION FOll PUESIDEXT. 

Here, upon no agreement being arrived at as to the mode of ex- 
auiinatiouof votes by the joint commission, on motion the Senate — 

Jienolrcd. Tliat tbe Scii.ito will bf ri-aily to n;ceivp the Ilousoof Repri'seutatives 
in tLe St-uatu Chamber on Wcilnesilay next, at twi-lve o'clock, for the purpose of 
lii-ing present at the opening anil countinir the votes for President of the United 
•States; that one person be appointed a teller on the part of the Senate to make a 
list of the votes for President t>f tlie United States as they shall be declared, and 
that the result shall bo delivered to the President of the Senate, wlio shall announce 
the state of the vote, which shall be entered upon the Journals : and if it shall ap- 
pear that a choice hath been made a<;reeably to the Constitution, such entry on 
the Journal shall be deemed a sutlicient declaration thereof. 

On the next day the proceeding.s show that Mr. Wells was appointed 
a teller on the part of the Senate for the i>urpo.se expressed in the 
above resolution. On February 11, 1>'01, the next day, it wasordered 
by tlu' Senate — 

That the Secretaiy notify tbe House of Repre.seutatives that the .Senate is ready 
to meet them in tbeSenate Cliamber for the purpo.ie of beini; present at the ojjen- 
inj; anil coiintini; the votes for President of the United .States. 

In accordance with this order the Journal shows that the House 
and Senate convened in the .*>enate Chamber for the purposes expres.sed 
in the above resolution. Throughout the proceedings — 

THE WOIU) VUEfltESlDE.Nr 

was used instead of I'rcsident of tlie Senate, showing that it was in 
the s]iirit of that character, rather than as presiding oliicer merely, ho 
was recognized in the performance of tliis duty. Here again the 
words of the resolution .•ii>poiMting tellers are i)recisely a.'< hitherto ; 
" to make a list of the votes for President and Vice-rresidciit of the 
I'niti'il St.ates (rs thtiixlidlllie dtclund" — by whom but by the \'ice- 
I'resideiit, and liow,if lu' has not the power to <lctcniiiiie what is a 
vote, and under what autliority if not tlio Constitution I 

No subtile logic of the brain can cKuid so clear a fact. The .Jour- 
nals of each House show that the President of the Senate in pies- 



> 11 

eiicc of both Houses proceeded to open the certificates of the elect- 
ors of the several States, beginning ^vith the State of New Hamp- 
shire, and as the votes were read the tellers on t lie part of each House 
counted and took lists of the same, which, Ijcing C()in])arcd, were de- 
livered to the President of the Senate. 

now PLAIN THE LANGUAGE, 

"as the vofdfi" (not names) were read ; (here the word read is used in 
place of declared, showing that the tirst reading and the declaring 
are the same, and again implying in ditlereut terms an absolute ne- 
cessity for the existence of a power to distinguish a vote from a pre- 
tense which is no vote at all;) and this, too, when the Yice-l'resideut 
who read and declared the vote was himself tied in the count by 
anotlier candidate for President and one vote changed would have 
decided the matter in his favor. And again, stands recorded on the 
Senate Journal of February 9, l.-^Ol, in all the solemnity of irrepress- 
ible truth, the great fact that the then Vice-President and President 
of the Senate was by them directed to make out a certilicate of elec- 
tion declaring that ''he did in the presence of both Houses open all 
the certiticates and count all the votes of the electors for President,"' 
&c. Thus far we have the fact of the 

miiECTIOXS OF THE COXSTrrUTIOX 

plain, for though the terms and language might have been more defi- 
nite, yet the action of the two Houses and the President of the 
Senate, uniform as it has been, lias set a seal upon this construction 
which has made them the fathers of this most proper interpretation. 
Even at this early day the wisdom of the framers of the Constitution 
had been shown in giving the two Houses of Congress no part but 
that of witnesses to the solemn act of counting and declaring the 
electoral vote. For they had only been prevented from using uncon- 
stitutional power as has been already shown by difference as to the 
mode of use between the two. This brings us to the constitutional 
amendment, article 12. And here the wliole line of reasoning here- 
tofore adopted is still further indorsed. For though the question, or 
doubt, if any, could only arise from a construction diiferent from that 
heretofore pursued of the words "the President of the Senate shall, 
in the presence of the Senate and House of Representatives, open all 
the certiticates and the votes shall then be counted," yet in the face of 

THE PRACTICAL ACTION 

based upon that clause by which the President of the Senate had 
always opened and counted the vote, as the certificates of election 
show, and though the question of what the result of pretended votes 
might be had been much discussed, the amendment re-afhrms the 
practical construction of the ])ower of the Vice-President by using 
the identical ivords. Xay, further, under the law passed to declare 
that under certain circumstances two sets of certificates, the same in 
substance but differing in form, sliallbe forwarded, it gives the Vice- 
President power to decide which shall be opened at the day fixed, 
which is a quasi-judicial action. 

THE FORMS OF I'ROCEIJURE 

under this amendment and the certificate ordered to be made by the 
President of the Senate of the result of the election for the fifth 
term contain the assertion that he had counted all the votes exactly 
in accordance with that lioretofore adopted. On February C, l.-W, 
the following resolution in relation to the Massachusetts electors 
was oli'ercd in the House by Mr. Bacon, who said that he wished, in 



IL' 

ofteriiig it, merely to give an intimation to the Senate tLat such peti- 
tion had been received. The resolution was as follows : 

Besolred, That tin- Clerk of this House do carry to tbe Senate tlie several memo- 
rials from sniidrv eiti/.eus from the State of Massaelmsetts, remonslratiiij: against 
the mode in which the apjMjiutraent of electors for President and Vice-l'ix-sident 
has heen proceeded to on the part of the senate and house of representatives of 
said State, as irregular and unconstitutional, and praving for the interference of 
the Senate and House of Representatives of the United States /or (/i« purpose 0/ 
preventiui) the eatablithment of so danijeroxis a precedent. 

In this connection. Mr. Kandolph said it api»earedtohim that, under 
color of redress of grievances, the resolution might go in a vervalarm- 
iug and dangerous manner to enlarge the sphere of act ion of the Gen- 
oral Government at the expense of the dearest rights of the States. In 
what manner, asked he, is the General Government constituted ? We, 
asoneof t lie l>ranches of the Legislature, are unrinestionably the. judges 
of our own (lualilicaticmsand returns. The Senate, the other branch 
of the Legislature, is in like manner the judge without ajipeal of the 
qualifications of its own members. But with respect to the appoint- 
ment of President, on whom is that authority devolved in the first 
instance ? On the electors, who are to all intents and jmrposes, ac- 
cording to my ai»prehensions, as much the judges of their own quali- 
fications as we are of ours; and it apjtears to me as competent to the 
people of any part of this country to jirefer a petition to the electoral 
college to set asi<le the returns of any members of Congress as to pre- 
fer petitions to this House to set aside the (jualifieations of electors. 
True, it is that for the convenience of the thing, and also for the pre- 
vention of cabals and intrigue, the electors assemble iti separate divis- 
ions in the respective States ; but they are to be considered, to all 
intents and ]>urposes, as a body of men equal in number to the Senate 
and House of Kt-prcsentatives, charged with the election of President 
and Vice-President of the United States, and judges in the last resort 
of their own qualilications and returns. If not, they are a mere 
nullity. * « * This is a delicate subject ; one which it is agreed on 
all hands there is no occasion to touch. The election is not only un- 
disputed, but indisputable. * * * If we do away the decision of 
the electoral body, which is as independent of us as we are of them, 
the Constitution is, in my opinion, verging to its dissolution. 

The resolution for the sixth term was identical with the former ones, 
and during the progress of the count attentiim was called to what 
appeared a defect in the returns from one of the States. But the 
matter was passed without even a consideration and the return duly 
counted. The same joint convention also refused to have an elector's 
reason for not having voted spread upon the Journal, it being coa- 
tendcd that tiie House had no concern with the causes why u vote 
was not received. 

Such it seems is 

THK STltlCT LEGAL rOSmOX 

oil the question of the counting of the electoral votes under the Con- 
stitution as construed and acted upon in every instance where a ([ues- 
tioii hail arisen wy to the comiiifiicemcnt of tlie civil war. The ap- 
pointiiifiit of tellers l)y and under the inspiration of a concurrent res- 
olution, HO called, but not so in lact.caii in no sense be taken as an act 
of law or having vitality under that clause of the Constitution au- 
thorizing the Government to carry out the powers herein delegated, 
for it needs what is essential under the third clause of section 7, 
article l,of the Constitution, which says, " P2very order, resoliiti<Mi, or 
vote to which the concurrence of the two Houses is required must be 
signed by the President." 



13 

UXKOKTLXATEI.Y THE lUSTOKY OK THE WOULD 

shows an innate desire on the part of power to arrogate to itself greater 
power, and in no form has tyranny and oppression and disregard of 
law shown itself more cruel and desperate than in nurestrained legis- 
lative bodies. They are safe in so far only as they are bound down 
and restricted to the exercise of powers wisely granted, and the ar- 
gument against the exercise of power on the part of the Vice-Presi- 
dent because of the danger from the nature of its extent is unreal and 
unreasoning. He is the second otiicer of the Government, yet re- 
moved from temptation because wielding no separate j)ower. From 
his relations to the Government he shall be President of the Senate 
and absolutely free from the chance of individual gain. In any plan 
involving wrong he could only be gainer in the case by declaring 
himself President in the face of the decision of the people, which would 
be revolution, pure and simple. Ho would be in the immediate face 
of the Representatives of the people, with impeachment before him, 
and harmless to act ; chained in as securely as it is within the power 
of man to be. Not so with Congress. Already its powers are vast 
and far-reaching. Already both branches have shown a full appreci- 
ation of their powers, and almost from the day of their creation the 
record will show a jealous spirit of aggression between the two, and 
a spirit of self-assertion such as has marked no other branch of Gov- 
ernment. No one who has read the debates of the past touching 

THE ELECTION'S AND POWERS OF THE TWO HOUSES 

can fail to mark and appreciate this startling fact ; for in the light 
and reason of history it reminds ns with a voice that will not be 
stilled of the horrors and awful crimes which can flourish in an irre- 
sponsible body or one uucontiued by something more than the spe- 
cious reasonings of arbitrary desires. These things were well known 
to the fathers of the Constitution. It was not in the power of the 
executive or judicial branches arising from that august division they 
anticipated danger, but from the power of the Congress. Indeed the 
words originally adopted did not anticipate the presence of the Con- 
gress as such. Thej" were "the President of the Senate shall, in that 
House, open all the certificates, and the votes shall be then and 
there counted." Surely if any intention had existed in the minds 
of the framers that Congress was to supervise or control the count- 
ing, it would have shown itself in difterent language than that. The 
operation of mind most natural was this, when put in words : The 
Vice-President is the proper othcer to open and count the votes, but, 
as it is a high and solemn duty and one to be performed with all due 
formality, let it be done in the Hall of the Senate and before tliat 
august representation of States. When the words in their present 
form were adoi)ted, so little attention seems to have been given to 
this that there is nowhere to be found a motion to strike out the 
"words " in that House," and so little importance seems to have been 
attached to the change that it was substantially agreed to by the 
committee of revision. 

But to illustrate more strongly the mind of that daj' in this con- 
nection, and as convincing of the overwhelming importance attached 
to the dignity and power of the States as such, and their rights in the 
premises, and not representatives of the people as such, when it had 
been decided that in the election of a President by the House "a quo- 
rum for this purpose shall consist of a member or members from two- 
thirds of the States," the convention refused to .add thereto the 
words, "and also a majority of the whole number of the House of 



li 

Roproscntatives." So that while it was possiblo hy tlio letter of the 
Constitution for nine members representing nine States to have been 
a quorum, yet it would not have been ])os.sible for sixty-one Rep- 
resentatives representing only eight States to have been so. True, 
such a condition was not probaltle, but the fact of the possibility 
being tlio essence of the rea-son of the law is an unanswerable illus- 
tration of the mode of mind from which the law received its birth. 
And the fundamental law on this subject thus fashioned and laid 
down in the Constitution has stood the test of time. It is a mis- 
take to suppose the case presented at this late day, complicated as it 
is by the bitter results of relentless civil war, is in any sense graver 
in a legal ]M(int of Aiew than those of the past. They were more or 
less founded on the institution of slavery and involved the deepest 
and most powerful appeal to the selfish passions of the human heart, 
for they were appeals 'founded on property rights and self-interest. 
Mr. Kaudolph, of Virginia, gave evidence of this in 1821, when he 
said he '* recollected perfectly well in the celebrated election of 
Thomas Jell'erson and Aaron Burr, * * * what were we tiien told? 
"Why, that we must withdraw our opposition or there would be no 
election ; that a dissolution of the Union impended ; that volcanoes 
began to play : that earthquakes yawned Vieneath us ; and recollect, 
sir, we had a President in the chair who had a majority in the House, 
small as it was. He treated the idea of giving away with derision 
and scorn. We said we will not give away, and you must take the 
consequences." Chancellor Kent also adds his voice to the view that 
the authority under the Constitution, in the absence of all legisla- 
tion to count the vote, is vested in the I'resideut of the Senate. 
This distinguished jurist says: 

The President of the Senate, on the secoml AVednesday in February succeedin!» 
every meeting of the electors, in tlie ure.scnee of both lloiise.s »f Consji-e.ss, opens all 
the certiticates and the vote.s are then to be counted. The Con.stituliou does not 
expres.sly declare by whom the vote-s are to be counted and the result declared. In 
the ca.se of qui'.stionable votes and a closely coutesteil election, this power may bo 
all-important, and I presume, in the absence of all le;rislative provision on the sub- 
ject, tliat the President of the Senate counts the votes and determines the result. 

So, too, Senator Bayard, in reference to this very subject, has said, 
and with most cogent force : 

The truth is. all my theories of po vein iin nt coniejiist about to this: that if tin 'v arc 
not to be honorably, himestly, and fairly administered, any laws that you make will 
be pei-fi'ctly worthless to jirocurethat justice and I'ertainty. that proper record of 
tlie will of the jieople. which our scheuu' of >;overnuu'nt was intended to pi\>duco. 
I apprehend tliat there is no rule which you can frame that will not be open to 
defeat by some supposititous cases. * » * AVhen the time shall come that a 
Vice-President of tins country, or the Senate ortheHouseof Kepresentative.s of this 
country.shall, from passion movin;: them, act otherwi.se than honestly, of what use 
are your laws or your safeguards of statutes and Constitution f They will be of 
no value, and the Government will have failed, ami another will take its jdacc. be- 
cause in all liuman experience there is one thing tliat will be neces.sary, no matter 
what form of goveninu-nt may exist, and tliat is that lionesty and truth shall be its 
I'oiuidutionstonc and enter into the administration of it.s ntl'airs. 

These, sir, .-ire the words of a distinguished democratic .*>eiiator, and 
who can doubt their truth ? So that the conclusion of all that can be 
said again.st the repo.se of trust or power in any one jdace applies with 
equal force to all. Especially does it apply to a body such as the 
Congress of the United States, where the daugt-r of improper collective 
action is always to be guarihd against, and where individual respon- 
sibility can so easily be shielded by the juotectiou of ])arty feeling. 
The words of Mr. rinckney, who had better means of knowing the 
thought of tlie framers of the Constitution, for he was of them and 



15 

of their (lay, sociu to me imaiiswcrable. lie said, as early as the year 
IriOO, in speakiug of the power of Congress : 

Knowing that it JAvas the iutentiou of the Constitution to niako the President 
completely independent of the Federal Legislature, I well remember it was the ob- 
ject, as it is at present not only the spirit but the letter of that instrument, to give 
to Congress uo interferenee in or control over the election of a President. It is 
made their duty to count over the votes in a convention of both Houses and for the 
I'resident of the Senate to declare who lias the majority of the votes so transmitted. 
It never was intended, nor could it have been safe in the Constitution to have given 
to Congress thus assembled in convention the right to object to any vote or even to 
question whether they were constitutionally or properly given. * * * To give 
to Congress even when assembled in convention a right to reject or admit the vote.s 
of States would have beeu so gross and dangerous au absurdity as the framers of 
the Constitution never could have been guilty of. 

In this consideration of this subject no attention has been given 
to the twenty-second joint rnle. All of the legislation and action with 
regard to the States lately in rebellion, since 1881, has been legislation 
fonnded on or growing out of a state of war. It was a legislation 
of its owu kind, and to meet the supposed existing necessities of a 
condition of war, or one resulting therefront. It is not necessary to 
refer to that specifically here. If the twenty-second joint rule were 
ever a constitutional rule, it has, at least, no existence now. In the 
face of the almost unanimous vote to that effect in the United States 
Senate, comprising the most distinguished leaders of both political 
parties, it is not presumed any one will seriously contend otherwise. 
I fully agree with the remarks, in this connection, of the distinguished 
gentleman from Massachusetts [Mr. Seelye] upon the character of 
this legislation, if it be called such, and its results. 

In conclusion, Mr. Speaker, I believe, in the face of my oath of 
fealty to the Constitution, that I cannot support this bill. If the 
President of the Senate has not the power he exercised for nearly three 
quarters of a century succeeding the establishment of the Constitu- 
tion — a sacred instrument which lias been able to carry itself and this 
country througl perils the like of which the history of nations does 
not reveal — surely the Congress has it not. If it has such powers as 
have been contended for, they are, from the very necessity of their be- 
ing, judicial powers, and cannot be delegated. If it be dangerous to 
tru.st one man withsuch authority, for whose improper exercise thereof 
a dreadful penaltj' awaits, how much vaster and more probable the 
danger when that one man is to be selected, as it were, by the hazard of 
a die, and under no authority of law whatever. Sir, it is in the dark, 
impenetrable future that tliis bill sows the wind to reap the whirl- 
Avind. The distrust and collapse of business that is over us and around 
us is the result of years of shuttling with dangers, just as this bill 
proposes now to do, until they had grown into all the terrors of war. 
I liud the patriotism of the democratic party, as far as this bill is con- 
cerned, to consist in the chance it affords to undo the results of an elec- 
tion duly decided in November last. As a member of this House, sworn 
to obey the Constitution, I cannot join in such a feast, and deeply as I 
regret it, and humiliated as I almost feel at not being able to view 
the subject as many able men have done, I shall obey the dictates of 
my conscience and vote against the bill. 



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LBAg'l2 



